N6501
	
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1056 OF 2014

THE STATE

V

BENSON KUALA

Porgera:  Auka, AJ
2016:   15th, 16th March and 24th June

CRIMINAL LAW – Rape – Not guilty plea – Trial – Criminal Code (Sexual Offences and Crimes against children) Act 2002 Section 347(1)
CRIMINAL LAW – Rape – Evidence – Desirability of Corroborative evidence – Rule of practice – Corroboration necessary – Direct or Circumstantial evidence – Victims evidence unreliable – Prosecution failed to proved its case beyond reasonable doubt – Finding of Not Guilty.

Case Cited:	
Didei v. The State [1990] PNGLR 458
McCallum v. Buibui [1975] PNGLR 439
The State v. Cosmos Kutau Kitawal (2002) N2245
The State v. Bike Guma [1976] PNGLR 10
The State v. To Vue [1981] PNGLR 8
The State v. Stuart Hamilton Merrian [1994] PNGLR 104

Counsel: 
Mr. Joe Waine, for the State
Mr. Robert Bellie, for the Accused

DECISION ON VERDICT
24th June, 2016
1.	AUKA AJ:	 On 15th March, 2016, Mr. Waine of Counsel for the state presented an Indictment to this court against the accused Benson Kuala containing one Count of Rape pursuant to Section 347 of the Criminal Code (Sexual offences and crimes against children) Act 2002.
It was pleaded in the Indictment that immediately before the commission of the offence the accused BENSON KUALA threatened to kill the victim and restrained the victim and abused a position of trust and authority.

2.	On Arraignment, the accused pleaded not guilty and two (2) days trial was conducted. 

3.	The brief facts of the case were presented to court by Mr. Waine in Written form as follows;
	
	That on 11th of April, 2014 at about 8 pm, victim Margret Kelly, a mother 	of four (4) children was walking home following two of her children who 	went ahead. Victim’s house is about 100 metres from accused house and 	they are neighbours and related in that the victims husband’s sister is 	married to the accused. Whilst victim was walking home, accused came 	from behind and grabbed her by the collar of her shirt, threaten to kill 	her and forced her further down away from the footpath. He then forced 	her down to the ground and sexually penetrated her by putting his penis 	into her vagina. It was further alleged that the act of sexually penetration 	was without the consent of the victim.

4.	The state’s evidence consisted of two witnesses including the victim and her husband Nathan Kelly. Apart from them, three (3) documentary 	evidences were tendered. They included the following:

		Exhibit “A1” “A2” Records of Interview conducted in English 			and Pidgin.
		Exhibit “B” sketch map of the scene of the crime.
		Exhibit “C” witness affidavit of victim’s husband Nathan Kelly.

5.	The Records of Interview (Exhibit “A” and Exhibit “A2”) contains nothing less than what the accuse said in his defence that he did not rape the victim as he at the relevant time was watching NRL Rugby League games telecasted on his TV set inside his house.

6.	The Sketch Plan (Exhibit “B”) basically shows the alleged crime scene and the surrounding houses. It basically showed that from the 	alleged crime scene to the accused house would be 30 metres. 	Even from the crime scene to the gambling house where victim 	was playing card and coming out to go to her house would be about 20 metres.

7.	The Sketch Plan also showed that the alleged incident occurred 	right inside the yard of the accused premises. There is a police barracks fence separating the police barracks and the accused premises. This is about 15 to 20 metres.

8.	Margret Nathan Kelly is the victim in this case. Her evidence 	relates to the alleged rape which took place on accused Benson Kuala’s yard at Porgera Station at about 8:30 pm on 11th April, 2014. 

9.	In chief she gave evidence that on Friday 11th of April, 2014 at about 8:00 pm, she and her two (2) children, the eldest been 17 years old were at the card house located within the yard of the accused’s premises. At the card house there were no adults, only children, so after playing card her children walked back together to house earlier. After some time, she started walking home to her family house some 100 metres away from the accused house. She was wearing a jean trousers, a collar shirt as her top and her under pant. She said, “as she was walking away from the card house, the accused came from behind and held her. She said that the accused used his right hand and held her right shoulder and the other hand he hold her trousers and told her that she was not going away. She said the accused then tore her jean trousers as well as her under pant, put her to the ground and inserted his penis into her vagina which took 1 hour, but she changed her story and said 5 minutes. She said after he sexually penetrated her, he told her not to say anything and not to tell anyone. She said Nathan her husband was in Tari at that time so she wasn’t saying anything. She said there was light but it did not light on where they were standing. Still in chief she said that the light was not shining where the sexual intercourse took place. She said where he forced her down, that place was dark. In chief she was asked how you knew it was Benson and she said ‘Em Benson’, it was Benson so I called his name. She was further asked on how she recognised the voice and she said she saw Benson so she mentioned his name. Still in chief she was asked where were you facing when he forced you down she said she was walking home and he grabbed her from the back so she mentioned his name. Then she was asked when you turn around and saw accused how did you recognised him and she said there was light there so she recognised him. Still in chief she was asked, at the time of incident did you shout and she said she shouted but he said you don’t call out so she did not shout. Then she was asked, whether after the incident she told anyone and she said Yes, Mathew, Janet, his wife Besney only those three. Then she was asked how her husband found out about the rape incident and she said when Benson rang, her husband Nathan was present and when her husband asked why Benson was asking for her. From her evidence she said her husband than said to her that now both of you are having secret affairs. It was at that time that she revealed to her husband that he at one time had sexual intercourse with her. She said after that her husband betted her. Still in chief she gave evidence of an incident that occurred to her in mid 2013, where she was with her son cooking flour under the house. She said Benson was under the influence of alcohol and came. She then got her child and went up the room where Benson followed them up the room. She told Benson’s wife Besney about it and other people. She said three (3) days later Benson sent her text message saying big ass. The court noted that this statement was never given to the Police when her statement was obtained by Police. 

10.	In cross examination she gave evidence that she is married to Nathan Kelly and has 4 children aging from 17 years to 7 years and has been living with him and four children at Porgera station which is 100 metres away from Benson Kuala’s house. She was shown the sketch map (Exhibit “B”) of the alleged rape incident and she agreed that it was a fair and accurate sketch map surrounding Benson Kuala’s house, the police Barracks, fence separating the police Barracks and Benson’s Premises, the guest house, gambling house and the Vocational School.  

11.	She further agreed that Benson’s house would be a bit further down the slope and on top would be the guest house. She agreed that the guest house have six rooms and doors facing towards where the crime scene is about 20 metres away. She agreed that there are families living in the guest house. She also agreed that there are line of houses further down which were occupied by families at the material time and the houses are not very far apart. She agreed that the lighting are there every night since it is provided by the Porgera Joint Venture (PJV) and power is on 24 hours. She agreed that on top of the guest house there is a security light which shines to the front of the house and even from the veranda of the guest house to where the alleged incident occurred. 

12.	In cross-examination she repeated that she was walking home when Benson came from behind and grabbed her. She said Benson’s right hand held her right shoulder while his left hand held the back of her jean trousers. She said he then tore her jean trousers as well as her pants, put her to the ground and inserted his penis into her vagina. The Court noted that the jean trousers and the underpants which the victim said were torn were never shown or produced in court as evidence. 

13.	In cross-examination she was asked when he grabbed you were your hands free and she said yes. She was asked whether she made any attempts to push him away and she said he threatened her. Asked if he used any weapon to threaten her she said no. Asked if her legs were free and why she had not run away. She replied he threatened her. Asked if accused put anything into her mouth to prevent her from shouting, she said no. Still in cross-examination she was asked after the incident did she tell anyone else. She said No. She was asked did she attempt to tell the children about the incident and she said she didn’t tell them as it was trouble. She was asked if she told anybody else in the family and she said yes, Mathew, Janet, his wife Besney only those three (3). In cross-examination she changed her story that, none of these three were informed about an incident that occurred to her in mid 2013 where Benson got drunk came and did something to her in the room. She gave evidence that the incident came to light on 26th May 2014, some 26 days after the alleged incident. She gave evidence that it came to light after Benson called her phone. Nathan got suspicious about it and accused her of having an affair with Benson. When she admitted that Benson raped her, her husband belt her up for that.
I closely observed her demeanour in the witness box and I find traces of a witness lying and been evasive. Example of her been evasive in her answers is as follows. First, in chief she was asked where were you facing when he took you down and she said I was going home and he grabbed me from the back so I mentioned his name. Secondly, still in chief she was asked at the time of the incident did you shout she said yes than she said because he told me not to shout so I did not shout. Thirdly, in chief, she was asked how did you know it was Benson she said ‘Em Benson’ it was Benson so I called his name. Fourthly, further in chief she was asked how she recognised Benson’s voice she said I saw Benson so I mentioned his name.

14.	The witness impressed upon me as an untruthful witness. I find this witness not credible and her testimony also not credible and contain numerous inconsistencies. Accordingly I don’t accept her evidence as credible. 

15.	The second witness called by the State is Nathan Kelly. He said that Margaret Nathan Kelly is his wife and have four children. The family lives at Porgera Station. He said he became aware of the incident after 26 days of the incident. In chief he was asked before the incident where was he working and he said first he worked and left and came back home and stayed with the family and incident took place. In cross – examination he was asked where he was living in 2014 and he said in 2014 he was unemployed and was at home and that was all of 2014, January to December 2014. Still in cross-examination he was asked if it is correct that his wife has Benson Kuala’s phone number in her phone and he said yes. He also said that he keeps Benson Kuala’s phone number in his phone. He was asked if he was at home on Sunday 6th May, 2014 and he said yes. He said he knows Benson Kuala well as his in-law. After establishing that the witness gave his story to Police on how he found out about the incident in statement form which he signed, that statement was tendered into evidence without objection from the defence and it was marked Exhibit “C”. In his witness’s Affidavit, he basically stated that he was in his house on 6th May, 2014 with his wife and the children. A call came to his wife’s phone. The caller asked how many of you are in the house. She replied all of us are in the house. Nathan enquired who the caller is and when the caller heard his voice switch –off the phone and he asked his wife who the caller was and the wife told him that Benson Kuala called. When he checked his wife’s phone, he saw that there were about 10 calls made by Benson Kuala to her phone in one day. That made him suspicious since he does not call his wife more than 5 times in a day. On Thursday, 10th of May, 2014, after his children left for school, he questioned his wife about why Benson’s number appeared more than 10 times a day in her call log. He was very serious with his questioning and when Margaret realised that Nathan Kelly was serious on his questioning, she finally admitted that Benson Kuala raped her. This court noted that most of Nathan Kelly’s evidence was hear-say and as such his evidence ought to be considered with great caution and given less weight on the wife’s very belated report on accused raping her.

16.	For the defence, only the accused Benson Kuala gave sworn evidence. He did not have any witness to support his case. He said that on the alleged date of the incident, 11th April, 2014, he remembered that it was a Friday evening. He said that evening there was NRL telecast Rugby League games played. The first game started at around 7:30 pm and ended around 9:00 pm and the second game started just after the first game ended between 10:30pm and 11:00pm that same evening. He can’t recall the teams that played or the scores since it is more than two years ago. He said the entire evening of 11th April, 2014 he spent it watching the games. He strongly denied the allegation of rape against him. He said only animals would do such a thing in front of his own yard where the electricity lights were shining brightly and where the guests and neighbours were actually around. Both in chief and cross-examination he denied grabbing the victim, putting her down on the ground, tearing her jean trousers and underpants and raping her. He also told the court that the victim’s evidence about him threatening her not to shout and not to tell anyone is completely not true. Further he said that the victim’s evidence in court that he raped her is totally not true. He was vigorously cross-examined but his evidence was not discredited at all. I closely observed his demeanour in the witness box I did not find any trace of a witness either lying or being evasive. The witness impressed upon me as a truthful witness. In the circumstances I find the witness credible and his testimony also credible which I must say is supported by certain surrounding factors which he had mentioned already in his evidence which under the logic and common sense principle are in my view relevant in deciding who to believe in this present case. Most particularly where he mentioned that his yard or premises was well lit and guests and neighbours were actually present and yet none of the people came forward to say that victim shouted and that her voice was heard on the accused yard.

17.	In his final submission on Verdict, Mr. Bellie submitted that the state has not proven its case beyond reasonable doubt. He based his submission on a number of factors.

18.	Firstly that there was no recent complaint. The victim never reported the incident straight after the incident to her husband and children who were in the family house that very night. She lied that her husband was away in Tari that is why she did not do anything when in fact her husband was at home in Porgera.  In fact she never told anyone about the rape incident until 26th days after the incident. And she did so after her husband belted her. She did not reveal the incident out of her free will. It was revealed out of a mobile phone call whereby her husband forced her to admit. And Mr. Bellie submitted that she basically revealed the incident to the husband only to save herself from being further belted up. There is evidence by photographs put to Nathan Kelly about the injuries he caused on victim’s body. Secondly prosecution failed to produce victim’s jean trousers and underpants which the victim said were torn by the offender before she was sexually penetrated at the alleged scene. Thirdly prosecution failed to produce a Medical Report. If there were allegations of the victim being raped she should have reported the matter so that medical evidence should have been obtained at the first instance to substantiate victim’s claim. Fourthly that under the logic and common sense principle, the victim’s evidence that the alleged offence occurred in front of a guest house must be considered and rejected. The alleged offence occurred right in front of a guest house. There are six families in that guest house. Guest and their family living there would have seen what was happening. Guest’s house lights were shining directly to the crime scene. It is only 20 metres away. No trees are growing at the scene and the place was clear. Yet no one heard the victim shout or no one saw what happened. Mr. Bellie referred the court to the case of The State v. Cosmos Kutau Kitawal (2002) N2245 where His Honour Justice Kandakasi stated quote “ Logic and Common sense play a major part in accepting or rejecting evidence and the guilt or innocence of an accused person. Evidence going against any logic and common sense are unreliable. Illogical explanations coupled with inconsistencies amount to unreliable evidence which ought to be rejected. Mr. Bellie submitted that in the present case there are inconsistencies and urged the court not to accept the evidence from the victim Margret Kelly. The inconsistencies are as follows.

1.	The victim Margret Nathan Kelly gave evidence about the lighting. In chief she gave evidence that there was no lighting where the offence took place.  She said where he forced her down, that place was dark and then she changed her story that there was lighting but it is shown from the top. She then said she saw Benson face because lights shone brightly from the top down, but not from underneath. Crime scene shows there is no hill there and if lights or spot light is place from the top of the guest house everything below will be clear and can see clearly. 
	Crime scene sketch plan shows victim attacked next to the fence 	. 	Victim said Benson grabbed her and took her down to the pitpit 	plants. However the sketch plan which she said was a correct 	plan 	shows 15 metres from the crime scene to the gambling house. It 	also shows 20 metres from where the accused house is to the crime 	scene. To follow the sketch plan shows that the incident occurred  	right near the fence close to a power 	pole and not near the pitpit plants 	as per victim’s evidence. The crime 	scene observation shows that from 	gambling house to the crime scene would be 15 metres and from 	accused’s house to where the alleged 	incident happened as indicated by 	the victim would have been about 30 	metres. The sketch plan is more 	reliable than what the victim said during the visit to the crime scene.

2.	That in her evidence the victim said that accused had sexual intercourse for one hour, but somehow she changed her answer and said it was for 5 minutes. The court noted that she made that change after she was signalled by some unforseen sources in the court room. That change of story is not only one of inconsistent but a fabricated evidence. 

3.	She was asked if she told anybody else in the family about the rape incident and she said yes and named Mathew, Janet and Besney only those three. She changed her story that no these three were informed about an incident that occurred to her in mid 2013.

19.	Mr. Bellie submitted that the above mentioned inconsistencies show clearly that the victim is an untruthful witness and her evidence not credible and must be rejected. 

20.	Mr. Bellie submitted that this is not a case where the victim after being raped by a person came and reported the matter to her husband. The husband found out about an affair that was going on between his wife and someone else. He seriously inflicted serious wounds on the victim; and the victim for purposes of saving herself made up the story to save herself from further injuries. That basically explains her motive for laying such a false allegation. Mr. Bellie submitted that the court should find Benson Kuala as a truthful witness and find that the charge of rape has not been proved as no reasonable tribunal can safely convict on the evidence of an untruthful witness which have lots of doubts and as such he submitted that the accused be acquitted. 

21.	Mr. Waine of Counsel for the prosecution submitted that the prosecution has proven its case beyond reasonable doubt and urged the court to find the accused guilty of the charge of rape. He said the victim is a truthful witness and her evidence credible. He said the demeanour of the victim is good and as such her evidence should be believed.

16.	The accused is charged with one count of rape, an offence under Section s.347 of the Criminal Code (Sexual offences and Crimes against Children) Act 2002. For the state to prove that the accused raped the victim, they must prove that the accused sexually penetrated the victim without her consent. The prosecution always bears the burden of proving their case beyond reasonable doubt.

17.	The presumption of innocence is rooted in s.37 (4) (a) of the Constitution which states that where a person is charged with an offence, he is presumed to be innocent until he is proven guilty “according to law”. SCR No. 1 of 1980 Re s. 22A (b) of the Police Offences Act (Papua) 1981 PNGLR 28, see also constitutional Reference No. 3 of 1978 Re Inter-Group Fighting Act 1977 [1978] PNGLR 421, SCR.1A of 1981 Re Motor Traffic Act [1982] PNGLR 122.

18.	In sexual cases prior to the new amendments to the sexual offences provisions coming into operation in April, 2003, there was a requirement not in law but in practice that, the Judges or Magistrates should warn himself or herself of the dangers of convicting an accused on uncorroborated evidence of the victim alone unless such evidence was corroborated in some material particular. The State v. Bike Guma [1976] PNGLR 10, The State v. To Vue [1981] PNGLR 8, Didei v. The State [1990] PNGLR 458.

19.	In the new Amendment which came into operation in April, 2003 especially s. 229H of the Criminal Code (Sexual offences and crimes against children) Act. It is stated that;
	quote “On a charge of an offence against any provision of this Division, 	a person may be found guilty on the uncorroborated testimony of one 		witness, and a judge shall not instruct himself or herself that it is 		unsafe to find the accused guilty in the absence of corroboration”.

20.	It is my view that the above provision is unconstitutional in the sense that, it goes against the spirit of s. 37 (4) (a) of the Constitution which provides for the full protection of law and the right to a fair hearing.
Although I agree that a person may be found guilty on the uncorroborated testimony of one witness; I am not comfortable with part of the provision which says that “a judge shall not instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration”.

21.	It is my view that as a judge of both facts and of law there is still need in sexual charge for the tribunal of fact and law to warn itself against the danger or risk of acting upon the uncorroborated evidence of the victim in relation to the elements of the offence charged. McCallum v. Buibui [1975] PNGLR 439.

22.	In the case of The State v. Stuart Hamilton Merian [1994] PNGLR 104, His Honour Sakora J expressed his view on the rule of corroboration on two charges of carnal knowledge against the order of nature contrary to s. 210 of the old provision on offences against sexual morality. His Honour said the following at p.112:
quote “ It has to be stated that sexual offences, by their very nature are almost always committed in “secret”, in the absence of third parties. This is contrasted with street and traffic offences, which can have any number of eye witnesses. Thus, reporting or detection of sexual offences, especially of incest and child abuse sexual cases, often occurs long after the incidents. It is a truism that the younger the victim the less the chance there is of the perpetrator being caught. 

23.	So, invariably there are no direct independent witnesses in these offences. But corroborative circumstantial evidence as explained by cross will suffice. In the two Queensland cases of R v. Withan (1962) Qd. R. 49 and R v Walczuk [1965] QWN 63 50 and the High Court of Australia case of Kelleher v. R [1974] 48 ALJR 502 (Barwick CJ at 505 said the less rigid rule of practise ensures that in all cases of sexual offences the court should warn the jury that it is not safe to convict on the uncorroborated testimony of the complainant but they may do so if satisfied of its truth”. Barwick said that a jury may act on the words of the woman alone but should exercise considerable caution before doing so, because of the ease with which charge is made and the difficulty which may attend its rebuttal”. 

24.	Due to the foregoing brief reasoning, I am unable to instruct myself in terms of s. 229 H of the Criminal Code (Sexual offences and Crimes against Children) Act 2002 particularly in relation to the uncorroborated testimony of the victim regarding the rape allegation.

25.	The Law is clear that, the State must prove its case beyond reasonable doubt before a person can be found guilty. The court cannot speculate from the prosecution evidence and form conclusions based on uncorroborated evidence of the victim alone unless the evidence of the victim is corroborated in some material particular. If the court forms the view that such uncorroborated evidence is worthy of believe then by all means it can accept it without any further proof.  

26.	In this case I find the victim as an unreliable witness on the basis I have mentioned to earlier and as such there is need for corroborative evidence.
There is an added safety value in criminal law which requires that the court must be satisfied beyond reasonable doubt of guilt of the accused before it can convict. And where there is any doubt the court must give the benefit of the doubt to the accused. Having said what I have said, I have very carefully considered both the evidence of the State witness namely the victim and her husband as well as the evidence of the accused and the view of the crime scene by the court party and the final submissions by Mr. Waine of counsel for the State and Mr. Robert Bellie of counsel for the accused, I find the victim’s evidence unreliable. 

27.	This is a typical case which requires good and strong corroborative evidence. Although the victim said that she shouted I don’t believe that she did. If she did the guest living on accused’s yard would have heard her or her card play mates who were at the card house would have heard her and attended to her. The scene of the crime according to evidence is well lit by electricity lights and have guests living as well as neighbours living not apart from accused’s premises, and if none of this people heard or saw what had happened then under the logic and common sense rule which I have considered and applied, this court must reject victim’s evidence. For reasons only known to her she did not report the incident straight away to the husband who the evidence show was in the house on that night. She told a lie on this aspect when she said that her husband was away in Tari. 

28.	Coupled with the above is the fact that no Medical Report was produced in court to show that sexual penetration took place. As well as that, the jean trousers and the underpants which the victim said were torn by the accused at the scene were not produced in court as evidence to corroborate the victim’s claim. The alleged crime scene which I mentioned earlier was well lit with electricity lights and was a clear area and its nonsense that no one saw what happened. I repeat that under the logic and common sense rule, this court rejects the victim’s evidence. In the end I find the evidence of victim not credible and full of inconsistencies and as such this court rejects her entire evidence. 

29.	I find the state case to be illogical and plain fallacy amidst the defence case standing tall as grass. This court is not convinced beyond reasonable that the accused committed rape upon the victim Margaret Kelly. 

30.	Accordingly, I find the accused not guilty and acquit him of the charge and discharge him. 

I order that His bail money is refunded.

Public Prosecutor	:	Lawyer for the State
Public Solicitor	:	Lawyer for the Accused